Opinions

Vacancy in Judgeship No. 1, NEJD 2016 ND 2
Docket No.: 20150353
Filing Date: 1/12/2016
Case Type: Judicial Administration - Rule - Rule
Author: Per Curiam

Highlight: Judgeship retained at Devils Lake.

Stock v. Stock 2016 ND 1
Docket No.: 20150011
Filing Date: 1/6/2016
Case Type: Appeal - Civil - Child Support
Author: VandeWalle, Gerald

Highlight: It is not clearly erroneous for a court to award permanent spousal support instead of rehabilitative spousal support where the circumstances warrant both awards.
The amount of a spousal support award is clearly erroneous where the amount unduly burdens the payor spouse by leaving the spouse in a nearly impossible financial position.
Although a district court and this Court have concurrent jurisdiction to award attorney's fees for an appeal in a divorce, we prefer the district court decide the issue of attorney's fees for a divorce appeal.

Markgraf, et al. v. Welker, et al. 2015 ND 303
Docket No.: 20150116
Filing Date: 12/31/2015
Case Type: Appeal - Civil - Oil, Gas and Minerals
Author: VandeWalle, Gerald

Highlight: Summary judgment is inappropriate if the court must draw inferences and make findings on disputed facts to support the judgment.
The statute of limitations for recovery or possession of real property, applies to any action for the recovery or possession of real property and is not limited to adverse possession or acquiescence actions.
When summary judgment is inappropriate but no further evidence would be presented at trial, parties may submit the case to the district court for a trial based on the record if the parties provide a stipulation of facts and exhibits, together with any argument the court permits.

Arrow Midstream Holdings, LLC, et al. v. 3 Bears Construction, LLC, et al. 2015 ND 302
Docket No.: 20150057
Filing Date: 12/29/2015
Case Type: Appeal - Civil - Contracts
Author: VandeWalle, Gerald

Highlight: A dismissal without prejudice is final and appealable if it has the practical effect of terminating the litigation in the plaintiff's chosen forum.
Generally, absent a different congressional direction, Indian tribes lack civil authority over the conduct of nonmembers on non-Indian land within a reservation.
It is not the particular form of business entity used by a tribe or tribal member, but whether the business entity was created under tribal law or state law that determines if the business entity should be treated as a tribe or tribal member.
State court jurisdiction over claims arising on Indian reservations is foreclosed if it is preempted by incompatible federal law or if it would undermine the right of reservation Indians to make their own laws and be ruled by them.

State v. Nelson (consolidated w/ 20150213) 2015 ND 301
Docket No.: 20150212
Filing Date: 12/22/2015
Case Type: Appeal - Criminal - Theft
Author: Sandstrom, Dale

Highlight: Restitution hearings are required when a defendant has pled guilty and the amount of restitution is in dispute or uncertain.
District courts have a wide degree of discretion when setting restitution, and the court's decision will not be reversed on appeal unless the court acted outside the limits set by statute, which is similar to an abuse of discretion standard.

Clark v. Farmers Union Mutual Ins., et al. 2015 ND 300
Docket No.: 20150199
Filing Date: 12/22/2015
Case Type: Appeal - Civil - Insurance
Author: Sandstrom, Dale

Highlight: Interpretation of an insurance contract is a question of law fully reviewable on appeal.
Courts look first to the language of an insurance contract, and if the policy language is clear on its face, there is no room for construction.

Washburn v. Levi 2015 ND 299
Docket No.: 20150149
Filing Date: 12/22/2015
Case Type: Appeal - Administrative - Department of Transportation
Author: VandeWalle, Gerald

Highlight: If an arrestee makes any affirmative mention of a need for an attorney before deciding whether to submit to chemical testing, law enforcement personnel must assume the arrestee is requesting an opportunity to consult with an attorney and must allow a reasonable opportunity to do so.
A failure to provide a reasonable opportunity to consult with counsel after the arrestee requests as much disallows the Department from revoking the arrestee's driver's license because of the arrestee's refusal to submit to chemical testing.

Bayles v. N.D. Dep't of Transportation 2015 ND 298
Docket No.: 20150200
Filing Date: 12/22/2015
Case Type: Appeal - Administrative - Department of Transportation
Author: McEvers, Lisa K. Fair

Highlight: A district court may not reverse a hearing officer's decision to suspend driving privileges when the only basis was failure to file the transcript within the statutory period.
For reversal based on noncompliance with the statutory period to file a hearing transcript with the district court, a defendant must show either prejudice caused by the delay or systematically disregarded the requirements of the law.

State v. Williams 2015 ND 297
Docket No.: 20150042
Filing Date: 12/22/2015
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Kapsner, Carol

Highlight: The district court has discretion in deciding whether to grant a request for a transcript, and the court abuses its discretion by refusing the request if a particularized need, necessity, or justification for its preparation and use is shown.

State v. Chatman 2015 ND 296
Docket No.: 20150037
Filing Date: 12/22/2015
Case Type: Appeal - Criminal - Drugs/Contraband
Author: Sandstrom, Dale

Highlight: Illegally obtained evidence cannot be used to establish probable cause to issue a search warrant, but a court is not required to suppress evidence obtained as a result of the search warrant if there was sufficient legal evidence presented to the issuing magistrate to establish probable cause.
Anticipatory search warrants do not delegate the issuing magistrate's power to law enforcement.